Wednesday, March 14, 2012

New from Jennifer Wriggins (University of Maine): "Is the Health Insurance Individual Mandate 'Unprecedented?': The Case of Auto Insurance Mandates." The article is available here, on SSRN. Here's the abstract:

Opponents
of the Patient Protection and Affordable Care Act of 2010 assert that
the ‘individual mandate’ is unprecedented, not just in the narrow and
obvious sense that the federal government has never before required
people to have health insurance, but in a much broader sense as well.
They claim government even at the state level has never before required
people to insure themselves. This article examines the assertion that
the mandate is an unprecedented outlier and a sharp departure from all
past government policies. This article finds that the laws in many
states require drivers to purchase insurance coverage for their own
injuries, that several states’ laws require drivers to buy coverage for
their own medical expenses, and that liability insurance mandates
protect careless drivers along with their victims. These long-standing
individual insurance mandates have been overlooked by both sides in the
current debate. As requirements for people to insure themselves, they
are clear, powerful precedents for the health insurance individual
mandate. If forced to admit that these laws exist, opponents may then
claim that driving is a pure choice: If people object to state auto
insurance laws, they can simply opt out and choose not to drive, while
there is no opt-out from the individual health insurance mandate. The
article argues that ‘driving as a pure choice’ is largely illusory and
not a sufficient basis on which to argue that these precedents are
irrelevant.

Finally, the article turns to the forgotten history
of auto insurance mandates, drawing lessons from that history for
today’s debate. The history shows first that, leaving aside the
Commerce Clause arguments which by definition only apply to the federal
government, the arguments used to resist auto insurance mandates were
strikingly similar to arguments used to oppose the health insurance
individual mandate. Second, courts have consistently recognized a link
between insurance and the public welfare justifying regulation in the
auto context. Third, governments have recognized for decades that the
auto insurance market must be regulated to provide a socially optimal
level of coverage, as seen in the U.S. Supreme Court’s 1951 decision
upholding a California market regulation law. Finally, state
governments have long required people to purchase insurance for
themselves from private sellers. The health insurance individual
mandate is not different in kind from auto insurance individual mandates
but rather extends the idea of insurance mandates to an even more
important context.